F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

JUL 19 2001

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 00-5099
(N.D. Oklahoma)

JESUS FERNANDO MIRANDA,

(D.C. No. 99-CR-89-C)

Defendant-Appellant.
ORDER AND JUDGMENT

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties request for decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
On September 29, 1999, Mr. Miranda pleaded guilty to one count of
conspiracy to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

(b)(1)(B). During the hearing, Mr. Miranda explained to the district court his
involvement in the cocaine conspiracy. On May 8, 2000, Mr. Miranda testified at
the sentencing hearing of his codefendant, Luis Baeza. At that time, Mr. Miranda
recanted his prior testimony from September 29, 1999, as it pertained to Mr.
Baeza and denied any involvement with him. Mr. Miranda testified that his
source of supply for cocaine was an individual named Frank. Mr. Miranda was
also unable to recall several of his earlier statements as recorded in law
enforcement reports.
In addition, Mr. Mirandas presentence report indicated that Mr. Miranda
was involved in an attempt to solicit the murder of two people associated with his
drug dealing activities. The report recommended that this conduct supported an
upward adjustment for obstruction of justice. Mr. Miranda objected to this
provision.
In sentencing Mr. Miranda to 110 months imprisonment, the district court
applied the two-level enhancement pursuant to USSG 3C1.1 for obstruction of
justice and refused to apply a downward adjustment for acceptance of
responsibility under USSG 3E1.1. On appeal, Mr. Miranda challenges both the
enhancement and the refusal to apply a downward adjustment for acceptance of
responsibility. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

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I. DISCUSSION
A. Two-Point Increase for Obstruction of Justice
Mr. Miranda contends the district court erred by imposing a two-level
enhancement of his sentence for obstruction of justice pursuant to USSG 3C1.1
after determining he committed perjury at his and at his codefendants sentencing
hearing. At his sentencing hearing, Mr. Miranda denied any involvement
regarding the solicitation of the murders of two people associated with the
conspiracy. An agent and a confidential informant provided testimony to this
effect. In response to Mr. Mirandas objection to the presentence report which
cited this testimony in support of an enhancement for obstruction of justice, the
district court stated that it was satisfied from the testimony that has been
presented through the agents and through the confidential informant . . . that the
obstruction of justice as explained in the presentence report is appropriate and
proper. Aplts App. at 183. Based on this evidence and after considering Mr.
Mirandas recantation at Mr. Baezas sentencing hearing, the district court
determined that Mr. Mirandas testimony was false.
We review for clear error the district courts factual findings supporting the
application of a particular sentencing guidelines provision and its legal
conclusions de novo.

See United States v. Shumway , 112 F.3d 1413, 1426 (10th

Cir. 1997).
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The sentencing guidelines mandate a two-point upward adjustment if a

defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice during the course of the investigation, prosecution,
or sentencing of the instant offense.

United States v. Chavez , 229 F.3d 929, 955

(10th Cir. 2000) (quoting USSG 3C1.1). Obstruction of justice includes

committing perjury.

See USSG 3C1.1, cmt. n.4(b);

United States v. Hargus ,

128 F.3d 1358, 1365 (10th Cir. 1997). To establish a defendants perjury, the
court must find that he (1) when testifying under oath, gives false testimony; (2)
concerning a material matter; (3) with willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.

United States v.

Copus , 110 F.3d 1529, 1536 (10th Cir. 1997) (internal quotation marks and
citation omitted).
First, Mr. Miranda challenges the nature of the trial testimony regarding the
murder solicitation as double hearsay. We need not address this matter because
we agree with the district courts conclusion that Mr. Mirandas perjury at Mr.
Baezas sentencing hearing was sufficient to support the enhancement for
obstruction of justice.
Second, Mr. Miranda contends that, even if his testimony at Mr. Baezas
sentencing hearing was untruthful, it was not material. We disagree. According
to the guidelines, [m]aterial evidence, fact, statement or information, as used
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in this section, means evidence, fact, statement, or information that, if believed,

would tend to influence or affect the issue under determination. USSG 3C1.1,
cmt. n.6; see also United States v. Bernaugh , 969 F.2d 858, 860 (10th Cir. 1992)
(applying obstruction enhancement where defendant had provided materially
false information at his guilty plea hearing with respect to the roles of his
codefendants).
In deciding to impose the two-point increase for obstruction of justice, the
district court stated:
As far as the Court is concerned, as far as the obstruction of justice is
concerned, you dont even have to rely upon the reliable testimony of
the threats of murder. The false testimony given is an obstruction of
justice in and of itself, and the Court finds in both instances that it is
sufficient to support the presentence report. I therefore overrule the
objection, and I accept the presentence report as it is presented to the
Court.
Aplts App. at 190. Here, as in

Bernaugh , Mr. Mirandas perjury with respect to

the actors associated with him in the transaction easily could be an attempt to
affect his own sentencing, by impairing the courts inquiry under Fed. R. Crim. P.
11(f), obfuscating his role in the transaction, and otherwise.

Bernaugh , 969 F.2d

at 862. Thus, we conclude the district court did not err by imposing the two-level
USSG 3C1.1 enhancement for perjury.

B. Acceptance of Responsibility
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We review the acceptance of responsibility determination as a question

of fact under the clearly erroneous standard. As such, the trial courts
determination of whether a defendant has accepted responsibility is subject to
great deference on review and should not be disturbed unless it is without
foundation. However, while we must give due deference to the district courts
application of the guidelines to the facts, we review the application of the
guidelines fully for errors of law. Pure questions of interpretation of the
sentencing guidelines, which are closely analogous to questions of statutory
interpretation, are questions of law. We review questions of law de novo.

United

States v. Amos , 984 F.2d 1067, 1071-72 (10th Cir. 1993) (internal quotation
marks and citations omitted).
Section 3E1.1 of the Sentencing Guidelines states: If the defendant
clearly demonstrates acceptance of responsibility for his offense, decrease the
offense level by 2 levels. USSG 3E1.1(a). The commentary to that section
provides that an obstruction of justice enhancement pursuant to 3C1.1
ordinarily indicates that the defendant has not accepted responsibility for his
criminal conduct, but adds that there may . . . be extraordinary cases in which
adjustments under both 3C1.1 and 3E1.1 may apply. USSG 3E1.1,
application note 4. The question before us is whether the district court erred in

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determining that this is not one of those extraordinary cases. We believe that it
did not.
When a court determines whether a defendant is eligible for a downward
adjustment for acceptance of responsibility, the application notes to the
Guidelines consider:
truthfully admitting the conduct comprising the offense(s) of
conviction, and truthfully admitting or not falsely denying any
additional relevant conduct for which the defendant is accountable
under 1B1.3 (Relevant Conduct). Note that a defendant is not required
to volunteer, or affirmatively admit, relevant conduct beyond the
offense of conviction in order to obtain a reduction under [ 3E1.1(a)
]. A defendant may remain silent in respect to relevant conduct beyond
the offense of conviction without affecting his ability to obtain a
reduction under this subsection. However, a defendant who falsely
denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with
acceptance of responsibility.
USSG 3E1.1, application note 1(a). Relevant conduct includes in the
case of a jointly undertaken criminal activity ( . . . whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity. USSG 1B1.3(a)(1)(B).
Here, Mr. Miranda lied about his co-defendants involvement in the
conspiracy. Moreover, Mr. Mirandas lie about the involvement of Mr. Baeza
hindered investigators from determining all acts committed in furtherance of the
jointly undertaken criminal activity.
1184, 1190 (10th Cir. 2000);

United States v. Patron-Montano

, 223 F.3d

see also United States v. Murray , 65 F.3d 1161,

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1165-66 (4th Cir. 1995) (holding that a defendant who denied involvement of
co-defendant during co-defendants trial had intentionally misled law enforcement
officers and should not receive a downward adjustment for acceptance of
responsibility). Thus, Mr. Mirandas perjury constituted the false denial of
relevant conduct.
This court recently stated in

Patron-Montano :

Although it would be error for a district court to categorically deny the

3E1.1 decrease simply because a defendant lied about relevant
conduct, the court can properly consider a defendants lie about relevant
conduct in evaluating the defendants eligibility for a 3E1.1 decrease.
When a sentencing court concludes that a defendant lied about relevant
conduct, the court could, in an exceptional case, still give a reduction
for acceptance of responsibility.
Patron-Montano , 223 F.3d at 1191. Here, there is no evidence demonstrating that
this is an extraordinary case in which a reduction of responsibility is merited
despite the defendants lie about relevant conduct. It is Mr. Mirandas burden to
prove that he is entitled to a decrease for acceptance of responsibility under
3E1.1, see United States v. Nelson , 54 F.3d 1540, 1544 (10th Cir. 1995), and he
has failed to meet that burden. Thus, the district court properly denied the
3E1.1 decrease.

II. CONCLUSION

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For the reasons stated above we conclude the district court did not err by
imposing the two-level USSG 3C1.1 enhancement for perjury, and we affirm the
district courts denial of the downward adjustment for acceptance of responsibility.

Entered for the Court,

Robert H. Henry
Circuit Judge

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